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Eric Posner Reviews Ackerman's "Decline and Fall of the American Republic"

POTUS-phobia

Eric A. Posner

The New Republic

October 20, 2010

Bruce Ackerman, a professor at Yale University Law School, does not mean that the United States has collapsed like the Roman Empire, or that it will. His title refers to the American constitutional traditions of limited government—what the Founders and some modern legal scholars call the “republican” form of government. Ackerman thinks that the presidency has burst these limits: it has become too powerful, and eventually it will be seized by an ideological zealot who will abuse executive powers. Ackerman does not predict what this zealot will do, nor when he will take power. The title and much of the text imply that the end times are here, or are inevitable unless we take strong actions today, but Ackerman commits himself only to the proposition that a zealot will take control in the foreseeable future with a probability greater than zero.

Ackerman’s best but least original argument is diagnostic. In 1973, Arthur M. Schlesinger Jr. published a book titled The Imperial Presidency, which argued that the American presidency had obtained powers far beyond those dreamed of by the Founders, and that this expansion of executive power at the expense of Congress and the judiciary threatened American freedoms. Schlesinger’s argument was nothing new, but his book was lucid and comprehensive, and in the aftermath of Watergate it struck a nerve. Clinton’s impeachment dealt a setback to the thesis, leading Schlesinger himself to write that the executive had become too weak. But George W. Bush’s presidency gave new life to it (causing Schlesinger to reverse himself yet again), and Ackerman is one of dozens of academics who have been inspired to extend Schlesinger’s argument.

The story is familiar. Americans began the Revolution by citing (and exaggerating) the executive tyranny of the British king, but by the time of the Constitutional Convention their experience with state legislatures had convinced them that it was legislative tyranny that posed the major threat. The Founders thus created elaborate checks and balances constraining the national legislature, but they left the executive office ambiguous, in this way papering over disagreement about the proper scope of executive power. A group of strong executives in the eighteenth and nineteenth centuries—Washington, Jefferson, Jackson, Polk, Lincoln—set the foundation for the imperial presidency of the twentieth; but for most of the nineteenth century the presidency was not a powerful office. Congress played the central role in the national government, and the state governments remained, in most domains, the primary loci of political power.